Obama's Detainee Agenda And Its Problems By Terrell E. Arnold

Obama's Detainee Agenda
And Its Problems
By Terrell E. Arnold
5-31-9


In the past few weeks President Obama has struggled to deliver on changes he promised in several overhanging Bush national security policies. He began his administration with a clearly stated plan to (a) terminate the War on Terrorism, (b) close the prison at Guantanamo, (c) do away with the practice of sending alleged enemy combatants to overseas sites for torture and anonymous lockup, (d) close the black American sites involved in such concealment of prisoners, (e) terminate the military tribunals conceived by the Bush team to keep "enemy combatants" out of America's open court system, and (f) continue the war in Afghanistan. Except for the Afghan war, those steps were understood by Obama supporters to be part of the "change" he pledged in his campaign. However, at every turn he paints a confusing picture of his intentions as he meets resistance from the national security establishment, the US Congress, the Military Industrial Complex, or the public.

Because the Bush team left Obama such a percolating mess, the new team actually did not have a hundred days to sort things out. In a recent article (see: The Politics of Excusing Torture in the Name of National Security at FindLaw.com) former presidential counsel John W. Dean describes Obama's choices with the clarity of long political experience. As Dean sees it, Obama's possible plans for dealing with most of the problems outlined above collide head on with the needs and preferences of the national security establishment. What Dean implies but does not say is that Washington changed leadership on January 20, but the city's long-standing oligarchy remained in place. To keep the establishment with him, Dean's appraisal suggests the President will be pushed to compromise on critical elements of his entire agenda.

That "entire agenda" is hard to divide into manageable parts. In his disturbing work, The American Way of War, Eugene Jarecki paints a picture in which Obama's current problems basically reflect a process of decay of the American republic that began at the end of World War II. Some conservative believers in the republic as founded fear that the Bush team moved the country only a few steps from outright fascism. The centerpiece of the process was the immediate postwar descent of the American system into excessive reliance on militarism. Having a military establishment whose annual budget is 20 or more times that of the country's diplomatic arm is a vivid benchmark of the country's modern extreme reliance on military force to hold its global power position. Jarecki's conclusion is that this descent into militarism gave the Military Industrial Complex flagged by President Eisenhower an overweening power over US policies and programs.

The argument may seem intricate but it is pretty simple. Even before 9/11 the Bush team and especially its neoconservative (neocons) supporters were working toward a global hegemonic scheme that relied on military power. However, their goal was an enhancement, not a basic change, of the long-term American power position. Even though the US was the most powerful state on earth, the Bush neocons felt US military power needed a great deal of work to overcome the neglect (meaning disuse) it had begun to experience after the Berlin Wall came down.

The United States had no global enemy, but the attacks on the World Trade Centers and the Pentagon gave the Bush administration a global enemy in the form of international terrorism as represented by al Qaida. Since the leadership of al Qaida was somewhere in Afghanistan, that justified an undeclared war with Afghanistan where the first task was to overthrow the Taliban extremists, a Muslin religious group who ruled that country and gave al Qaida a place to live. Then the neocons moved to take out Iraq's Saddam Hussein because allegedly-among the first of a string of lies-he was allied with al Qaida. Al Qaida then morphed (US military and CIA intel version) into a leading enemy in Iraq, and that country became, in the words of US General David Petraeus, "the Central Front in the War on Terrorism".

In reality, however, since the middle of 2003 the United States has been fighting two wars, mainly in Iraq and Afghanistan, neither one against the governments of those countries. Rather, the Iraq military forces were defeated within the first week, and the Taliban were overthrown in Kabul in fairly short order. Any official Afghan enemy represented by the former Taliban rulers of that country disappeared into Afghanistan's lofty outback or Pakistan's wild northwest frontier region.

Obama inherited the remnants of those two aimless wars still being fought, not against a government, but against small sub-national groups. Insurgents are now largely quiescent in Iraq, but about 4,000-5,000 of the Taliban are now engaged by the Pakistani army in that country's northwestern region Swat River valley. Somewhere in that northwest region are alleged to be the remaining forces of al Qaida, a cluster variously estimated at 3,000-5,000 members.

This is all relevant to Obama's problems with delivering on his political promises, because the enemy combatants held at Guantanamo, at various black sites such as Diego Garcia in the Indian Ocean, and at US run Bagram prison in Afghanistan grew out of the two wars and associated efforts to destroy al Qaida. The US system now contains roughly 800-900 detainees, the great majority of them in Bagram prison. Obama's open public commitments involve cleaning up only Guantanamo and its detainees.

Almost immediately on taking his oath of office, President Obama faced growing pressure from supporters to get on with closing Guantanamo. To fund the operation, in May the administration requested $80 million for closure of Guantanamo ($50 million) and to investigate charges of torture there ($30 million). Those funds were requested in a supplemental appropriation for funding US wars in Iraq and Afghanistan. However, Hawaii Senator Daniel Inouye, Chairman of the Senate Committee on Appropriations, took the money out of this bill because he said the funds were not needed at this time. That may have been so, but the real causes were congressional problems. First, some senators expressed discomfort with torture investigations. Second, the more likely reason for removing the funds was growing congressional and public debate over what to do with the remaining estimated 240 prisoners at Guantanamo when the prison closes. Members of Congress said it was too dangerous to bring the prisoners to the United States, and there were public complaints about prison safety.

Obama did not allow much time to pass without responding to the congressional action. In a May 21 speech at the National Archives, he restated his intent to close Guantanamo and laid out his plan to deal with its detainees. He said the members of Congress who argued against bringing detainees into the American prison system were using "words that are calculated to scare people rather that educate them." On prisoners now being held at Guantanamo, the President said his intent was to transfer them to high security US prisons which, he commented, are "already holding hundreds of convicted international terrorists, gangsters and murderers."

To deal with the detainees at Guantanamo, the President outlined a five part plan. He would: (1) try the ones who violated US criminal law in US criminal courts; (2) try the ones who violated the rules of war by his version of military commissions -something like courts-martial; (3) free the ones ordered to be released by US courts; (4) transfer a number-he indicated 50 or more-to other unspecified countries "for detention and rehabilitation"; and finally (5) figure out what to do with "those who cannot be prosecuted yet who pose a clear danger to the American people." He gave no indication of numbers associated with each approach, but the majority evidently would end up before his version of military commissions or they would be sent abroad.

That fifth category, Obama indicated in his May 21 speech, would require a case by case determination. However, those who in the end were judged to represent genuine danger to the United States would become "prisoners of war". In effect, this procedure would reduce the number of such prisoners to a set of hard cases, as he put it, "people who've received extensive explosives trainingor commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden or otherwise made it clear that they want to kill Americans." However, the President concluded, "We must have clear, defensible, and lawful standards for those who fall into this category." This, he said, "is the toughest single issue that we will face." How this type of hearing would differ from a trial process was left unclear.

The proposed plan of attack on the enemy combatant problems drew immediate fire from critics. The plan on the surface had much more clarity than anything put forward by his predecessor. However, there were major gaps. First, Obama did not say how he intended to set aside the loose procedural language of the Military Commissions Act. The Act actually gives accused enemy combatants virtually no procedural rights and certainly no guarantees of due process. Second, he did not indicate means, if any, to assure that the 50 or so prisoners he would transfer to foreign governments would not be tortured, as they are now known to be in various countries. Third, he did not announce closure of the black US sites; instead he apparently plans to keep them for unspecified short period detentions or contingency operations, Obama's version of the War on Terrorism. Fourth, Obama outlined a fairly complete plan for dealing with only about a quarter of the detainee problem--the prisoners at Guantanamo. He made no mention at all of the more than six hundred enemy combatants reported to be housed at US-run Bagram prison in Afghanistan.

If the normal definitions of US and international law were applied, use of the term "prisoner of war" for the fifth category of enemy combatants could bring them under the terms of Article 4 of the Third Geneva Convention. While that category typically excludes terrorists, saboteurs, mercenaries and spies, putting the fifth group of detainees in the prisoner of war category would mean they are not chargeable with acts normally considered acts of war and could not be punished for them. Fighting back against an invading army, even if you are a civilian, is not a crime under the Geneva Convention. That classification probably means as well that these prisoners should be repatriated, if they wish and if their country of origin will receive them. The dilemma here is that a finding that they have committed acts not covered by the rules of war, meaning probably they have committed crimes of violence, would mean they are entitled to trial in a Federal court where, if not convicted, they should be set free

The true test here is whether Obama and his team can-and indeed intend to-bring handling of these issues properly and fully under the American legal system. That means application of at least five basic principles: One ­ US criminal law and procedure is entirely capable of dealing with terrorist crimes. Two ­ US military tribunals, if used, must provide a system that protects both the state and the accused. Three-The US Constitution entitles everyone to due process. Four ­Even if torture works, it is not acceptable under American or international law. Five­ US national security can successfully withstand the truths that will out in trials of terrorism cases. Ultimately the American public needs a commitment that the Obama administration is proceeding in an orderly and legal fashion to deal with the cases of all detainees held anywhere by Americans or on behalf of Americans by third parties.

A cloud over this whole picture is the anomalous war in Afghanistan/Pakistan. Other things equal, that war will generate new detainees. Will those detainees be cast into the legal no man's land that those at Bagram now appear to occupy? The supplemental appropriation that excluded Obama's request for funding to close Guantanamo provided over $92 billion to continue the wars in Iraq and Afghanistan. Since the administration had not requested any funding for taking care of detainees at Bagram, it is assumed those costs are part of the war costs. In any event, the Bagram detainees remain anonymous and remote. The total detainee problem is four times as big as the Guantanamo piece of it. And in fact the anonymous detainees at Bagram may go on being held without any process to settle their cases and protect them from torture, even as the Guantanamo issues are resolved in some fashion that meets US legal, treaty, congressional, or public demands.

Another cloud is actually the definition of the term "enemy combatant". Does the term define someone who criminally sets out to do us harm, or only someone who opposes us as we pursue our interests? The six hundred or more detainees in Bagram prison were apparently picked up mainly in the battles with Taliban, al Qaida or other tribal opponents in Afghanistan. They appear to have been defending their interests on ground that belongs to them not to us. Does this make their only crime one of opposing US forces? If it does, that would mean the US has criminalized insurgency, which is a legitimate form of opposition to an invading force, especially when such forces present themselves in a war fighting mode.

The overarching challenge is that the detainee problem is becoming perpetual. Obama promised, if elected, to bring our troops home from Iraq while intensifying the war in Afghanistan. Under that model, the so called War on Terrorism in and around Afghanistan would continue to generate detainees. However, General George Casey, Army Chief of Staff, recently indicated that the US Army is planning for a decade-long presence in both Iraq and Afghanistan. According to the Associated Press, General Casey said US presence had become necessary to meet a "sustained US commitment to fighting extremism and terrorism in the Middle East." In short, the US, as perceived by General Casey, is taking up a long war against Islamic fundamentalism.

That US agenda is a case model for provoking insurgency and terrorism. In each country US-friendly locals are set up to govern populations who do not want the Americans occupying their countries, and Casey made it clear that our presence in both countries is an "occupation". Insurgencies will grow in both countries, US forces will go on being their best terrorism generators in each country, and the people who fight back will be taken into custody, if they are not killed. Compared to the growing and continuing nature of this coming detainee problem, Guantanamo is an almost trivial pursuit.

Obama's first task is to break away from the obvious if unspoken judgment of Bush era officials-and some on his own team-that treating accused enemy combatants fairly will invite attacks or leave former detainees free to commit more attacks. Little proof of that has been offered, but a reputation for brutality appears justified by at least some officials as a deterrent that would be totally undercut by strict application of American legal and moral principles.

This brings us frontally to the challenges now faced by the Obama administration: Can the national security establishment, the Congress, its bevy of lobbyists and the public be persuaded that our system of laws and courts should be protected and applied to all cases? Will Eisenhower's defined Military/Industrial plus Congressional Complex permit closing down wars that mainly generate more detainees? To the extent that both wars are partly religious in focus, are they sustainable US policy? Or will the administration be forced to compromise? Will it cave and keep detainees in anonymous and remote locations? Out of public view, will Obama permit continuance of past Guantanamo practices at Bagram and elsewhere that ultimately will destroy our system?

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The writer is the author of the recently published work, A World Less Safe, now available on Amazon, and he is a regular columnist on rense.com. He is a retired Senior Foreign Service Officer of the US Department of State whose overseas service included tours in Egypt, India, Sri Lanka, the Philippines, and Brazil. His immediate pre-retirement positions were as Chairman of the Department of International Studies of the National War College and as Deputy Director of the State Office of Counter Terrorism and Emergency Planning. He will welcome comment at

wecanstopit@charter.net